Panel:

Chairperson, RPN
Member, RN
Member, RN
Public Representative
Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO Counsel for College of Nurses of Ontario

and -

CLAUDIO TOMMASINI #89-1421-0

Counsel for Claudio Tommasini

Heard: November 21, 2000

This matter came on for hearing before a panel of the Discipline Committee on November 20, 2000 at the College of Nurses of Ontario at Toronto.

The allegations against Claudio D. Tommasini (the “Member”) as stated in the Notice of Hearing dated November 20, 2000, are as follows:

It is alleged that you have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professional Procedural Code, paragraph 1.1 of Ontario Regulation 799/93 in that in or about [month] 1999, you contravened the standards of practice of the profession, or failed to meet the standards of practice of the profession, the particulars of which are set out in paragraphs 1, 2, 3 and 4 of Appendix A:
You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code, paragraph 1.7 of Ontario Regulation 799/93, in that in or about 1999, you abused a client verbally or emotionally, the particulars of which are set out in paragraph 5 of Appendix A.
You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code and paragraph 1.10 of Ontario Regulation 799/93, in that during the period between [month] 14 and [month] 17, 1999, you gave information about a client to a person other than the client or his or her authorized representative, and where you were not required or allowed to do so by law, the particulars of which are set out in paragraphs 1, 2, 3 and 4 of Appendix A.
You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code, paragraph 1.37 of Ontario Regulation 799/93, in that you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, the particulars of which are as set out in paragraphs 1, 2, 3, 4 and 5 of Appendix A.
You have committed an act of professional misconduct as provided by section 51(1)(b.1) of the Health Professions Procedural Code, in that, you sexually abused a client, the particulars of which are set out in paragraph 5 of the Appendix A.

Particulars of the Specified Allegations

On or about [month] 14, and [month] 17, 1999, you gave information about the client, to another person), without the consent of the client. This included information about her past drug use, her past sexual activity, and her Hepatitis B and C status.
On or about [month] 14, 1999, you engaged in conversation about the client, with another person which included discussion about the client's sexual activity and past medical and personal history.
On or about [month] 17, 1999, you gave information to this other person about the client’s clinical condition, including her Hepatitis B and C status.
On or about [month] 14 and [month] 17, 1999, you gave information about the client to another person, and requested that he refrain from advising the client about the information you disclosed.
In or about 1999, you made comments of a sexual nature to the client, in that you stated “nice ass [client].”

Counsel for the College advised the panel that Allegations 2 and 5 were being withdrawn. Particular 5 from Appendix A in the Notice of Hearing was also withdrawn.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 3 and 4 in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows:

The Member

Claudio David Tommasini, registration number 89-1421-0 (“the Member”), has been registered as a Registered Nurse with the College of Nurse of Ontario (“the College”) since 1989. He received his nursing diploma from Confederation College in Thunder Bay in 1988.
The Member began working at a psychiatric hospital ("the Hospital") in 1989, and has worked there up until the time he was dismissed from his employment on [month] 18, 1999 as a result of the incidents described below. Pursuant to a negotiated agreement between the Member’s union and the Hospital, the Member was subsequently permitted to resign.
When the Member began his employment at the Hospital, he was required under the Public Service Act to swear and sign an oath of secrecy concerning information that comes into his

knowledge while a public servant. A copy of an Oath of Office and Secrecy sworn and signed by the Member on [date], 1989 is attached as Exhibit A.

The Hospital and Unit

The Hospital is a large provincial mental health care centre in Thunder Bay. The Acute Care Unit (“the Unit”) is an integrated adult male-female unit for clients with such psychiatric diagnoses as schizophrenia, paranoia, bipolar disorder, depression and those with dual diagnoses: substance abuse and a psychiatric disorder. The Unit is designed for clients who require short-term admissions, generally in the range of 2 weeks to a month at a time.

The Client and the Third Party

The Client is a female client of the Hospital, approximately 19 years old. She has been diagnosed with Obsessive-Compulsive Disorder (OCD) and Borderline Personality Disorder. She has a history of substance abuse and attempted suicide. At the time of the incidents in question, she was a client of the Hospital’s Acute Care Unit (“the Unit”), but on a leave of absence to a residential setting. She had been admitted to the Unit on at least six prior occasions since she was 16 years old.
The Member was not the Client’s primary nurse on the Unit. However, she had spoken to him about her past relationships and other past difficulties. She trusted the Member and had confided to him that an ex-boyfriend had abused her sexually. The Member had been kind to her on occasion in the past, including a time when the Client called the Unit after she was locked out of her house and the Member arrived to help her get in.
The Third Party is a male client of the Hospital, approximately 25 years old. He has been diagnosed with schizophrenia, a condition that is managed with medication. He was first admitted to the Unit as an in-client in [month] of [year] for 1-2 months, and since then on two other brief occasions. Since his first admission as an inclient, he has been an outclient of the Unit where he attends once every month or two and consults with his psychiatrist.
the Third Party met the Client initially through a friend, but the Third Party got to know her while he was an outclient of the Unit, and she was an inclient. They continued to see each other socially outside the Hospital.
Both the Client and the Third Party met the Member when they were clients of the Unit.

The Incidents

On [month] 14, 1999, the Third Party and the Member were at a local bar in Thunder Bay. They did not arrive together and had made no plans to meet.
The Member approached the Third Party, and discussed how the Third Party was doing. During their conversation they discussed the Client The Member remarked on the Client’s past, implying she had been promiscuous, and asked the Third Party if he knew that the Client was Hepatitis B and C positive. When the Third Party asked the Member how he knew about the Client’s Hepatitis, the Member explained that the Client’s nurse had told him.
The Third Party was very worried by this information and asked the Member how Hepatitis B and C are contracted, and whether they can be fatal. The Member referred to the Client’s IV-drug use, suggested that the Third Party get tested, and attempted to reassure the Third Party about his and the Client’s prognoses. He also stated that he just hoped that the Third Party had worn a condom when he “did her”.
The Third Party explained that his history with the Client was intimate but not sexual, and provided the Member with details of his physical relationship with the Client to see if there was any way he could have contracted either disease.
The Member explained that the Client did not know of her Hepatitis status at that time. When the Third Party insisted that either the Member tell her, or he would, the Member became concerned.

He stated that if the Third Party told her, the Member would get in “deep shit”, that he was not sure the information was true, and that he would tell the Client the following Monday. He told the Third Party that he revealed this information to protect the Third Party

On Monday, [month] 17, the Member left a message on the Third Party’s answering machine as follows: “Hi . The information I gave you is false. If you want to know more, call me at the Hospital, Acute Care.” When the Third Party called the Member, the Member told him that the Client did not have Hepatitis A or B. He explained that what had happened was that the Client had been vaccinated for Hepatitis B and C and that when a person gets vaccinated, there will be a positive result for antibodies [emphasis added]. The Member said there was definitely no need to worry, and asked the Third Party not to tell the Client
Immediately afterward, the Third Party hesitated to tell the Client about what had happened because she was suicidal. However, on [month] 4, the Client was in good spirits, and she and the Third Party were on a social outing. The Third Party told the Client about what had happened and what the Member had told him.
The Client was very upset and went directly to the Hospital to confront the Member on the Unit.
The Client angrily confronted the Member on the Unit, punching and kicking him, saying “How could you do this? You fucken asshole. You told [the Third Party] I was Hepatitis B and C positive!”.
The Member said “I’m sorry” several times, and said “Great. Oh fuck! I’m gone. I’m fucken gone. Now what am I going to do.” and “Shit! Fuck! Now what am I going to do?”, or words to that effect, several times.
The Member left the Unit to step outside where the Third Party was waiting for the Client
Inside the Unit, the Client continued to swear: “That fucken asshole is going to pay. How could he do this to me. It’s not true!”.
When the Member saw the Third Party he said “Why’d you tell her?” and “ I mean she came in there punching and kicking me. How am I supposed to defend myself against that? I think I just lost my job.”
The Third Party replied that he had to tell the Client and said “Please don’t try and lay a guilt trip on me, this isn’t my fault.”
The Member replied “I’m not trying to lay a guilt trip on you, but you shouldn’t have told her.”.
Later that night, the Member approached the after-hours shift supervisor and reported to her that he had breached a client’s confidentiality and that the information he gave was incorrect. The following day, he also approached the after-hours nursing supervisor, to confirm that he would not be working in the Unit. He also told her that he had breached a client’s confidentiality.
If the Client were to give evidence, she would say as follows: She is still very upset about the incident; she is now very mistrustful of staff at the Hospital, and does not disclose what is going on with her to the staff out of fear of what they may say about her to others. She now believes that staff at the Hospital make you feel worse about yourself, and that they all lie and talk about clients.

Expert Opinion

An expert in psychiatric nursing and nursing ethics, was consulted by the College of Nurses of Ontario with respect to this matter. A copy of her curriculum vitae is attached hereto and marked as Exhibit B.
If called to give evidence, she would testify that the conduct of the Member, as described in paragraphs 10 to 15 hereof, fell below the standards of practice of the profession. It is also her opinion that the said conduct, in the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The reasons for her opinion are set out in her report, which is attached hereto as Exhibit C.

Admission of Misconduct

The Member admits that by revealing information about the Client to the Third Party on [month] 14 and 17, 1999, concerning the Client’s Hepatitis status, her sexual history and past drug use, all of which he learned as a nurse on the Unit, he has committed acts of professional misconduct by giving information about a client to a person other than the client or his or her authorised representative where he was not required to do so by law, as is set out in paragraph 3 of the Notice of Hearing.
The Member also admits that, in relation to the conduct described herein, he contravened the standards of practice of the profession, and that the said conduct, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, as alleged in paragraphs 1 and 4 of the Notice of Hearing.
The Member acknowledges the breach of the standards committed by him. The Member states that he had good intentions but acknowledges that his actions were misguided. The Member expresses remorse and recognizes the seriousness of the consequences of his actions with respect to the Client and the Third Party as well as with respect to the College. Indeed, the seriousness of the matter has been emphasized to the Member with the loss of his employment.

Previous Finding of Professional Misconduct

At a hearing before the Discipline Committee of the College of Nurses on [date], 1990. The panel determined that the Member had breached the standards of practice when he poured two basins of warm water over a client who was violently resisting shower care. With respect to penalty, the panel required the Member to be reprimanded, to submit satisfactory performance appraisals every three months for one year, and imposed a suspension of three months, the service of which would be suspended unless the Member’s performance appraisals were unsatisfactory, or not received by the College within a reasonable time. Copies of the decision of the panel in that case and copies of the Agreed Statement of Fact and Joint Submission on Penalty are attached as Exhibits D and E, respectively.

Qualification of the Expert Witness

The panel accepted the nursing consultant as an expert witness based on her curriculum vitae. The panel noted her extensive experience and knowledge in psychiatric nursing and in nursing ethics, acquired through her research and lecturing. In particular, her special interest and expertise in the therapeutic nurse-client relationship, including the areas of trust, confidentiality and informed client consent qualified her as an expert in this hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member agrees that he committed an act of professional misconduct as alleged in paragraphs #1, #3 and #4 in the Notice of Hearing. The Member acknowledges in the Agreed Statement of Fact that he committed an act of professional misconduct, in particular, that he did contravene the standards of practice of the profession by breaching client confidentiality.

The panel found that if the expert witness had been called to testify, her evidence would have included that the Member failed to meet the standards of practice of the profession because his practice was inconsistent with ethical standards and showed lack of knowledge about the principles of mental health nursing. This includes the principles of confidentiality and maintaining therapeutic boundaries.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

Claudio David Tommasini, registration number 89-1421-0 (“the Member”), and the College of Nurses of Ontario (“the College”) jointly submit that, in view of the professional misconduct admitted to by the Member in the Agreed Statement of Fact, and the circumstances set out in the Agreed Statement of Fact, the panel of the Discipline Committee should make an order doing the following:

Requiring the Member to appear before the panel to be reprimanded.
Directing the Executive Director to suspend the Member’s certificate of registration for 8 consecutive months, such suspension to begin on the day the panel’s order becomes final.
Imposing the following term, limitation or condition on the Member’s certificate of registration:

a. Before resuming the practice of nursing, when the period of suspension has been served, the Member must review the College publications The Ethical Framework for Registered Nurses and Registered Practical Nurses in Ontario, and the fact sheet entitled Confidentiality, and must review his understanding of those publications, and their applicability to his practice, with a College Practice Consultant.

Counsel for the College advised the panel that this penalty reflected the seriousness of the Member’s conduct in that there was a breach of trust and that the behaviour of the Member suggested flagrant disregard for professional conduct and confidentiality in the therapeutic nurse client relationship.

College counsel added that this behaviour reflects negatively on the entire profession of nursing and impacts negatively on the public’s trust in health care professionals. College Counsel submitted that this Penalty would provide specific deterrence to the Member and general deterrence for the profession.

College counsel suggested that the penalty would support rehabilitation of the Member in that the Member would be required to meet with a practice consultant from the College after reviewing standards of practice regarding confidentiality and the ethical framework for Registered Nurses and Registered Practical Nurses in Ontario. Counsel for the College submitted that the panel consider mitigating and aggravating factors. Mitigating factors included the fact that the Member self-reported the confidentiality breach and that the Member is regretful. Aggravating evidence was a previous decision of misconduct against the Member in 1990.

Counsel for the Member advised the panel that the Member’s previous misconduct was an old charge and not similar in nature to the confidentiality breach, that the Member had self reported the breach and was regretful of his actions. In addition, counsel for the Member urged the panel to consider that the motivation of the Member was to protect rather than to do harm, that he had already suffered financial and emotional losses and that he wished to protect the complainant from having to testify. Counsel for the Member suggested to the panel that the previous finding of misconduct in 1990 did not factor into the Joint Submission.

Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and the proposed penalty, has accepted responsibility for his actions. The panel concluded that this penalty would provide specific deterrence to the Member and general deterrence to the profession and that it would provide an opportunity for rehabilitation of the Member.

The panel did not agree that the previous finding of misconduct was irrelevant, however this finding was not a factor in the acceptance of submission on penalty.

The panel accepts the Joint Submission as to Penalty.

I, [chairperson], RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

, Chairperson Date Member, RN

Member, RN

Public Representative Public Representative

/1056A 11/15/2000

College of Nurses of Ontario v. Tommasini, 2000 ONCNO 50773

Case Summary